Given the pervasiveness of regulation over the American economy, ensuring procedural due process for all Americans wishing to participate in both adjudications and rulemakings before administrative agencies is no easy task. Indeed, unlike Congress—which is a political institution specifically designed by the Founding Fathers to promulgate laws based on the will of the people—an administrative agency, as a creature of Congress, is specifically designed to be apolitical so that it can implement the will of Congress by following its particular governing statute (e.g., the Federal Communications Commission and Communications Act; the Federal Energy Regulatory Commission and the Federal Power Act). For this reason, we have the Administrative Procedure Act, which requires, among other things, administrative agencies to provide interested parties with a meaningful (and orderly) opportunity for notice and comment regarding agency decisionmaking, and to disclose any private meetings with outside parties which may have a material impact on this decisionmaking (what are known as “ex parte” rules). By establishing such procedural safeguards, an administrative agency can (ideally) make dispassionate decisions based on the law, economics and the facts before it, rather than succumb to outside political pressure.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Ending Prohibition: Are there Lessons to be Learned?

In this essay, my intention is not to focus on the fact that the 21st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.

To quickly summarize the facts, the 18th Amendment was enacted in 1919, which prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” However, as detailed in the excellent Ken Burns documentary, Mark Thornton’s seminal book entitled The Economics of Prohibition, and elsewhere, despite its altruistic intentions, Prohibition didn’t decrease alcohol abuse but increased it; Prohibition didn’t eliminate crime but created it; and Prohibition certainly didn’t increase prosperity but robbed the treasury of taxes. As a result, Prohibition was repealed in 1933 by the 21st Amendment. (Significantly, because of fear of grassroots political pressure from the temperance movement, the 21st Amendment is, thus far in American history, the only constitutional amendment ratified by state conventions rather than by the state legislatures.)

Given this debacle, I think there are at least a few lessons I think we can learn:

To begin, Prohibition provides an excellent example—albeit a bit dysfunctional one—of the amendment process spelled out by Article 5 at work, in that we as a society were able to self-correct a policy gone horribly wrong. Indeed, although I’m sure Prohibition was enacted with the best of intentions, the Prohibition experience nonetheless epitomizes the “law of unintended consequences.”

That said, here is an interesting question to ponder: let us assume that rather than elevate Prohibition to the full fledged level of a Constitutional Amendment, we only went so far as to pass a law that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” Would it have been easier for us to self-correct Prohibition via either a new law through the legislative process or a Constitutional challenge in the courts? Probably. As a result, Prohibition also teaches us to exercise some degree of caution and careful thought before we seek to undertake another effort to amend the Constitution.

Yet, but perhaps most importantly, Prohibition forces us to recognize the old maxim that if we are to be a society of laws, then the public must believe in the legitimacy of the law. Indeed, in undertaking research for this essay, I came across a telling quote by wealthy industrialist John D. Rockefeller, Jr. from 1932, whereby he wrote:

“When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.”

So what is it about Prohibition that caused many Americans literally to lose faith with their own Constitution? Certainly, we have a lot of laws that constrain personal behavior (e.g., prohibitions against murder; prohibitions against fraud and theft; prohibitions against treason), but everybody generally accepts these constraints as necessary to ensure a functioning society. What was it about Prohibition that, to use Mr. Rockefeller’s words, “created a vast army of lawbreakers…”?

Although I’m sure different people can provide different answers to this question, I come out with the view that Prohibition failed because Americans simply came to realize that the government had no business sticking its nose into their personal lives and interfering with their proverbial “pursuit of happiness.” Thus, because many Americans viewed the law as violating their basic civil liberties, they saw no reason to comply with the law.

To illustrate my point, let’s take the following extreme hypothetical example. As many readers of Constituting America are well aware, American’s cherish their Second Amendment right to bear arms. Now, let’s assume that a huge “firearms temperance” movement sweeps the nation and, as a result, a new Constitutional amendment is enacted that repeals the Second Amendment and prohibits the “manufacture, sale, or transportation of firearms within, the importation thereof into, or the exportation thereof from the United States.” In such a hypothetical case, while law abiding citizens could no longer own guns to hunt or to protect their families, do we honestly think that gun-related crimes would disappear or that a vibrant black market for firearms would not instantly blossom? Of course not. In such a case, I have no doubt that after a few years of many unintended consequences, there would be a forceful movement to repeal my hypothetical amendment too.

In sum, Prohibition teaches us that while it is possible to correct bad policy decisions, any time we seek to elevate an issue to the level of a Constitutional Amendment we should do so with both great discipline and respect for individual liberty. If we do not learn the lessons from Prohibition, however, then we are doomed to repeat them in the future.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center or its staff.

1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Under Article II Section 1, Clause 1 of the Constitution, the “executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected….” By establishing the then-radical concept of an elected Chief Executive with a fixed term, the Founding Fathers made a bold statement to the world that the newly-formed United States of America was rejecting outright any notion that it would tolerate a new American monarchy (and, with it, presumably an accompanying peerage of Lords made up of selected landed gentry).

Without question, time has proved that the concept of an elected chief executive with a fixed term has served the American people well. Yet, when this idea was first proposed, the citizens of a post-Revolutionary War America were skeptical. As a result, Alexander Hamilton was forced in Federalist No. 69 to sell the Founder’s vision to a wary public.

Hamilton began his essay by reiterating the point that one simply could not compare the position of President to the King of England, for if one did, “there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.” Indeed, explained Hamilton, while the President is “re-eligible [only] as often as the people of the United States shall think him worthy of their confidence,” the King of England was a “hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.” (Emphasis in original.) As Hamilton so elegantly summarized the issue: “The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.”

But Hamilton did not stop there.

For example, Hamilton explained that while a President could be impeached, “there is no constitutional tribunal to which [the King] he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”

Similarly, Hamilton pointed out that while a President can veto a piece of legislation, the Congress can nonetheless override this veto by two-thirds votes in both houses. In contrast, the King of England had “an absolute negative upon the acts of the two houses of Parliament.”

Moreover, while a President may “nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution”, Hamilton argued that there were no such constraints on the King. (Emphasis in original.) To the contrary, Hamilton forcefully argued that the King of England was

“emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king….”

And what about issues of foreign policy? Again, in Hamilton’s view, the powers of President and King stood in stark contrast.

Under the Constitution, while the President is the “commander in chief”, only Congress may formally declare war. On the other hand, Hamilton pointed out that the power of the British King went beyond commander-in chief and extended to “the declaring of war and to the raising and regulating of fleets and armies….” (Emphasis in original.)

Moreover, while the President has the power to make treaties only with the advice and consent of the Senate, Hamilton demonstrated that the King was “the sole and absolute representative of the nation in all foreign transactions” and could “of his own accord make treaties of peace, commerce, alliance, and of every other description.”

So, viewing Hamilton’s arguments with the benefit of over two hundred years of history, what can we learn about Article II Section 1, Clause 1 of the Constitution? In my view, the lesson is simple and obvious: no matter how much we may disagree with the policies of a particular President, there are (fortunately) significant Constitutional checks and balances to curtail potential abuses of his authority. Indeed, to paraphrase Hamilton, so long as the power of the government remains “in the hands of the elective and periodical servants of the people”, the United States is no danger of being characterized as “an aristocracy, a monarchy, and a despotism.”

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.

Article III of the Constitution provides the parameters for the third and coequal branch of the federal government: the Federal Judiciary. Today’s posting will focus on the importance of judicial independence as contemplated by the framers.

In Article III Section 1, the Constitution sets up the Supreme Court and “inferior” courts (i.e. Federal district courts and federal appeals courts), and provides that federal judges shall “hold their offices for good behavior” (i.e., life terms). Article III Section 2 then defines what type of disputes fall within the Federal Judiciary’s jurisdiction. (Article III Section 3 also sets forth the specific provisions for trying a case of treason, but discussion of this specialized topic is better left to a dedicated post.)

The Founding Fathers understood that a strong and independent judiciary was an integral part of the brilliant system of “checks and balances” they developed: the Legislative Branch would pass a bill; the Executive Branch (i.e., the President) would sign the bill into law, and then the Judicial Branch would evaluate whether the law passed Constitutional muster. If the courts found that a particular piece of legislation failed this test, then the Legislative Branch remains free to take another bite at the apple, and so the virtuous cycle of our Constitutional Democracy continues.

Perhaps one of the most often asked questions by non-lawyers about the Judicial Branch is why are members of the Federal Judiciary appointed for life (the aforementioned “good behavior” language mentioned above), while members of Legislative and Executive Branches have Constitutionally defined terms of office? The answer is straightforward: the Founding Fathers clearly understood that the judiciary must be impartial, dispassionate and, most importantly, free from political pressures that face the Executive and Legislative Branches. By not having to constantly fear political reprisal, judges may administer the law fairly without regard to public reaction.

But what if a member of the Judiciary is guilty of malfeasance? Certainly, for conduct unbecoming the office (malpractice, corruption, etc.), the Constitution provides for an impeachment process.

But what if you just don’t like a judge’s approach to a case? Stated another way, you are convinced that the judge has engaged in some sort of “judicial activism” whereby the judge has “made” law rather than “interpreted” the law. Is this ground for impeachment? While technically the Constitution’s definition of impeachable offenses might be considered broad enough to cover “egregious“ judicial activism on the part of a judge, a more considered view is that the elected branches exercise restraint in their use of this tool perhaps for no other reason than that “judicial activism” often lies in the eyes of the beholder. (See, for example, President Obama’s recent public chastisement of the Supreme Court for its Opinion in Citizen’s United before the full Congress at this year’s State of the Union Address.)

Instead, the appropriate mechanism for change in the Judicial Branch is to let the electoral process play out (which, by definition, reflects the will of the people) and allow these elected officials to appoint and confirm new judges as vacancies open. As former Chief Justice William Rehnquist recognized before he died:

In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials. It is not a perfect system—vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated. But for over 200 years it has served our democracy well and ensured a commitment to the rule of law.

In sum, although our legal system may not be perfect, our Founding Fathers set forth a legal framework that remarkably still holds up nearly 225 years later. To this end, I leave you with a small prayer by Chief Justice Rehnquist:

Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world.

Wise words indeed.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.

40 Responses to “April23, 2010 – ArticleIII of the U.S. Constitution – GuestBlogger: LawrenceJ. Spiwak, President of the PhoenixCenter for AdvancedLegal and EconomicPublicPolicyStudies”

Judicial activism is a scourge on our country. In no way did the Founding Fathers provide for or envision a scenario where the Judiciary would make law. That is clearly within the realm of the legislative branch, to be aided by and enforced by the executive branch, and interpreted by the judicial branch.

Those of us who hold this view are seen as Constitutional “purists”, with the word “purist” being a pejorative term. The implication is that we are stuck in 1787 and can’t quite adapt our views to the realities of the Modern Era. But since when is someone who loves and values the Constitution a regressive, backward-looking idealist?

Though we have not read or studied yet the Amendments, the Founders allowed for–through an extremely rigorous process–the Constitution to be changed so that it would NOT become a tired and irrelevant document in the coming centuries. The mechanism, therefore, is already there to keep the Constitution relevant and fresh. The mechanism is the drafting of an amendment, which must be passed by super-majorities in Congress and then by three-quarters of the states.

One that tends to make new law from the bench. The resulting case law can be consistent with proper court function when it corrects vague statutes or reconciles law to the constitution. Or it can simply presume to take over the function of the legislative branch, not good.

The most worrisome activism is when the court so severely overreaches that it effectively amends the constitution, circumventing the correct process for such change.

I wish just once that something dealing with the legal system would be written in common English not legalese. Even the Constitution sends me to the dictionary to try and understand what in God’s name are they talking about.

As I read ArticleIII, images of the Supreme Court being reprimanded by our President during the State of the Union Address kept being played over in my mind. I am still embarrassed for our country every time I think about it. As I understand it, the Judicial Branch is an equal part of the U.S. Government, and should not be beholden to the other 2 branches; the Legislative and the Executive. At the State of the Union, the Supreme Court judges were guests, and should not have been held up for ridicule.

In his book, ‘The 5000 Year Leap’, Cleon Skousen gives a great illustration of the Balance of Power using a Three-Headed Eagle. In his explanation, Mr. Skousen labels the third head as judiciary which was assigned the task of acting as a guardian of the Constitution and the interpretation of its principles as it was originally designed.

That is why I am troubled when I hear our President say he wants to find judges that will take in account certain rights of special interest groups and interpret the law that takes in account the struggle of the individual. For example, in his comments to find a replacement for Judge Stevens he said he will choose a nominee who pays heed to the rights of women and the privacy of their bodies. Yet he said he won’t enforce any abortion rights “litmus tests.”

Obama said it is “very important to me” that his court choice take women’s rights into account in interpreting the Constitution, his most expansive comments yet about how a woman’s right to choose will factor into his decision.

The President’s last judicial pick of Judge Sotomayor was filled with controversy when she was noted of stating at a panel discussion at Duke University in 2005, where she told students that the federal Court of Appeals is where “policy is made.”
“I know that this is on tape,” she then immediately said. “I should never say that. Because we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.

I guess with everything, if you have a complete majority in two of the branches of government, the safeguards for the Balance of Power get distorted.

I agree with the idea that it is OK to amend the Constitution to better be able to get judges out who make law. How about giving them a 10 year term? Stagger it for a certain number of years where a President could only make one appointment per term assuming he or she served two terms?

Just as they did with the original Senate where they did a lottery to stagger it where both Senators from a state would not be up for reelection at the same time, make it where down the road a new nominee comes up every 10 years.

@Susan Craig – don’t feel like the long ranger. The problem is not legalese – rather it’s “olde” English. My husband and I are both attorneys and, in reading the last paragraph of ArticleIII last night, we were slightly bewildered. Extrapolating from the “olde” language, we came to the conclusion that the words simply mean that the family of the treasonous person won’t be stoned or cast out into the wilderness, etc. Treason is linked only to the person committing the treason.

@Thomas – since you insist on bringing PTA rules into the discussion, I have e-mailed our Florida Republican senator (Lemieux) and provided him with my insight as to why the recess appointment of Craig Becker was outside Constitutional parameters. Am I now free to challenge the rest of you to do the same in your respective states?

@Donna – I took my complaint about the recess appointment of Craig Becker, along with several other issues, to my representative at his townhall meeting. I have expressed my concern about these appointments to my Senators as well in person, and in phone calls. I guess when you are in the minority, it is easy to have your objections overridden.

Shannon, I don’t think term limits for SCOTUS would work, however, a review/oversight (a confirmation light) every 15 years from confirmation answering to usurpation of legislative prerogative might constrain the inclinations to legislate from the bench. I think this could be done in committee with up or down acceptance on the legislative floor.

I don’t remember what I was reading but one of the founding fathers made the statement SCOTUS are to serve a term and then go back home and live among their people.
That way they remain government of the people of the people. Maybe it was Thomas Paine?

@DonnaHardemon- After reading that section and a bit of Googling, my husband and I came to the same conclusion. We believe it was due to the English Common Law in which a person convicted of treason forfeited their property to the crown.

The Judicial Branch is equal to the other two branches of government. My concern is why does the Supreme Court give deference to Congress when ruling whether legislation is constitutional or unconstitutional? The court is to be objective upholding the Constitution, not giving deference to the Legislative or Executive Branches.

Also, our court system may be a great system, however, through history they have been very “schizophrenic” in considering legislation such as slavery and segregation. They did rule correctly in regard to President Jackson forcing Native Americans to reservations, however, Jackson thumbed his nose at the Judiciary.

The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.

@Chuck Plano, Tx: Your statement is only one side of the argument. Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it. I’ll leave my statement at that, and let the smarter and more informed than I work it out.

This subject is more thoroughly explored by Alexander Hamilton in Federalist No. 78, the first of six essays by Hamilton on this issue. Stick around till then, and we can discuss it further.

Matt – how do you know it’s the end of the term of Congress? In re-reading the section, it makes sense since Session is the term used and the previous paragraph refers to Senate authorization. I tried to do some case law research and didn’t come up with anything. So, when is the end of the next Senate session – next time they go on a break – like July 4th or does the “Session” literally start once a year? What does that mean for Craig Becker? Is he supposed to be out? Will he be out? Will the Senate be given the chance to confirm somebody else? Even if the answer to all those questions is supposed to be “yes” what are the chances of it actually happening?

I realize that all of these conversations are most likely being archived somewhere, but is someone making a hard copy of any of this? This could potentially be history in the making. We wouldn’t have many of the great resources that we do today to look back upon if someone didn’t write it all down and keep copies.

While the founders may never have imagined the world we live in today since it has changes in so many ways, they clearly understood human nature, which has changed very little in the last several hundred years. The constitution is just fine the way it was written and amended. If you want to change it follow the rules and make an amendment.

The founding fathers said that the judges of the supreme court are apointed for life. Unless of course he/she resigns or commits treason. I like this because onces he/she is in, it’s for good. That means to me that if the judges in the supreme court do something that the president or someone in the government doesn’t like, it’s not like they can fire them.

Wonderful discussion going on here! I am learning so much just reading your ideas and insights. This whole question of judicial activism has concerned me for some time. In considering Associate Justice Sotomayor’s comment during her confirmation hearings, “…we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.”, I can see where things get messy. A judge with a certain mind set is weighing politics, community issues, previous cases and the rights of the accused in a decision. One can only hope that common sense and right action are in integrity in these instances. Politics and resulting “activism” can insinuate into those decisions very easily. So, although I understand what she is saying, it is not a great comfort to me.
Is this where the case law becomes the standard by which future cases are judged, at the appeals level? AJ Sotomayor also said often that she would have to review past case law in her rulings. I am only using her statements during the confirmation because they are fresh, not as a criticism of her per se. Still, is it the Supreme Court’s mandate to hold those case decisions against the original intent of the Constitution to assure that these “precedents” don’t get too far off the track? Thoughts?

It would be very beneficial if we could have someone discuss if, and when, circumstances would allow State Courts to refuse to enforce U.S. Supreme Court opinions. It is my understanding that the “Supremacy Clause” only results when the law passed by Congress is Constitutional. The reference to the Supreme Court’s decision regarding the Indians in Georgia being correct and that President Jackson elected to disregard that opinion indicates to me that the three divisions of the Federal government are EQUAL and should not be able to overrule each other when each are acting within the power granted by the Constitution. Since the Federal government derived it’s power from the States and the States derived it’s power from the governed (people), how is it possible for the Federal government to pass legislation that it doesn’t have the authority to pass. My understanding of our Republican form of government is that the Federal government was not to interfere with the States and the States were not to interfere with the local governments. All problems were to be resolved at the lowest level of government possible. Only when the lower level required the assistance of the higher level and requested help were they to become involved in solving the problems.

Lillian. When my children were young, I was explaining to them why precedent alone (which is all I learned in law school) was insufficient. I gave them the example of a household where junk food is not allowed. Mommy gives in the first week and says – just sodas on the weekend. The kids push her into every day – since the precedent has been established. Then it’s pushed to allowing candy – but only after dinner. Well, lunch is a meal too so why not after lunch? Now that we have cokes and candy allowed, what’s wrong with McDonalds? It’s not nearly as bad as candy and we’ve already established that precedent. At some point Mommy needs to step back and say – “Remember the original rule, guys? We’re going back to that.” Yes, there will be screaming and yelling, but the original rule was a good one. I was gratified years later when my son was working on his legal badge in Boy Scouts and used this example to explain the judicial case law system to his fellow Scouts. It’s never too early to educate the kids. (The Progressives already know this so it’s time the strict Constructionists got the same message.) Good blogging girl.

Contrary to Mr. Spiwak’s post, ArticleIII section 1 does not infer a lifetime appointment for federal judges. The duration of their appointment is limited to good behavior.
Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.
James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court: “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.
Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.
John Marshall, Chief Justice of the U. S. Supreme Court: “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.
The judiciary is not ment to be independent or co-equal branch of government.
Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.
Joseph Nicholson, early Member of Congress, successfully managed the impeachment of multiple early federal judges: “Give [judges] the powers and the independence now contended for and . . . your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country…after being clothed with this arbitrary power, they are beyond the control of the nation. . . . If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is – as it has been called by its enemies – mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.

Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.
The sword in the above text refers to the executive branch, and the purse refers to the legislative branch.
Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)
As Rep. Steve King correctly explains, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle” – a power that the Judiciary cannot reciprocally exercise over Congress.
The Supreme Court can only give opinion(that is why in all of their decision say” it is the opinion of this court) and have no ability to enforce their decision other than what the executive branch supplies.

Great discussion!!!I have taken to reading the comments before I start writing,because I find it all so informative and thought provoking, thanks all.
The conition of man was clearly taken into account when our founders hammered out our Constitution.I only wish that our Representatives (all branches) would work as hard as they did.
I have a nagging reaction everytime there is need to appoint a new Supreme Court Justice, the conversations always without fail talks about the balance, Liberal /Conservative. This bothers me a lot, it surely seems to imply that there are at least two interpertations of our Constitution !!The casual way this is collasped into the various particulars that are considered seems to in some way pave the path for the things that bother me about some of the deciions the Court makes. (Emenant Domain to name one).
The party that is in the majority can stop the appointment because the cadidate is not enough this way or that way idelogically speaking…. is that the way we keep the promises of our Constitution? Perhaps I am a hick but I am most interested in their character, their academic, qualifications and their experience that has made them stand out as special and good.
One more comment, I was oh so embarassed of our President when he rallied his cronies to clap over the heads Justices during the last State of the Union. He was devisive through out the whole address . Casting himself and the Dems as THE ones. There were three equal branches presedent but he cut the Justices, the Republicans out.Shame on him.

I would submit that our problem is the Senate does not “advise and consent” they merely vote for thier party ideology which is clearly not “advise and consent” What we need to do is have a block of Senators that have sworn to uphold thier oath in a contract with the Nation/people that they will not consent to approve any Federal Judge, at any level, that does not uphold the constitution as written. Any judge with documented activist views based on thier teachings, writings, speeches or involvement in legal cases will not be consented to. This group of senators can cut across party lines but are people with proven honesty and integrity with a track record of “non-flip-flopping”.
Presently Senators bring up just such documentation of activism and the nominee softens thier prior tone or trys to explain away thier true intentions or words based by saying they also agrued the other side. They do this even though no Senator or citizen believes them and knows exactly what they will do. In my humble opinion there is no other side to the constitution. If the law needs to be changed the Legislature can amend using the constitutional process. Judicial activism has eliminated Christian values from our educational system and our public squares (clearly never the intent of the religious founders) which has hurt our culture in both government and the private sector. In additon, small human infants are legally murdered by thier own mothers (many who are scared, confused and under pressure from abortion activists) These are just two examples of activism in the last century. Now we may have forced government healthcare and a double taxation situation with a new Value added tax. Not to mention the existing double taxation on wages and then on investments made after taxes are already paid on the principal. No one has allowed these thing to occur but our elected officials. About 535 elected congressional members voluntarily choose to erode our constutional rights for what? Power? Money? A liberty and freedom restricting socialist form of goverment? It seems to me to be treason to do such a thing but sadly the founders never envisioned the moral breakdown of our society to this extent or they would have allowed for the people to impeach via a majority ballot vote instead of congress. I know we can turn this around if we have a firm strong backbone and dedicated sites like this one to educate our citizens and future citizens to take back our liberties.

Hi all!
Donna, the example you used to clarify the dangers of relying on precedents over first principles is wonderful. It has really made me uneasy to hear some of the decisions that have been made based on case precedent rather than constitutional understanding. Thank you!
Bill, the words “good behavior” got my attention when I read them as well. If applied by today’s definition, President Obama could have fired the Justices who ruled “badly” right in the middle of the State of the Union address. Frankly, it made me a bit nervous to think this after reading your blog.
Thanks for all of these great blogs. Really, really wonderful.

I agree with what you said about being bothered by the way Supreme Court Justices are selected. It’s sad that congressmen can’t agree if a judge has ruled in the past according to the constitution. Before the presidential election Obama said he would choose justices that used empathy to interpret the law. That sent up red flags at the time! Eminent domain rulings have been especially troubling in recent years, as you said.

I see two things that keep legislation from the bench going. One is the somewhat twisted interpretation of certain passages in the Constitution, particularly the Commerce Clause. The second is the dependence on Legal Precedent (a concept from Common Law), rather than Original Intention of the Founders.

Maybe what we need is an amendment, not to change what the Constitution says, but to make a little less ambiguous a few key passages. And I would like it also to put Original Intention above Legal Precedent.

Part of this problem is exacerbated by the fact that sometime (I think in the 20th century) Law schools stopped teaching Constitutional Law and switched to Case Law. Now I think it is a rare law school that places an emphasis on Constitutional law.

@Richard, regarding your question about (what amounted to) term limits, I suspect from your description that you read The Virginia Declaration of Rights, an important predecessor to the federal Constitution, in which the following appears:

Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

You may notice that the judiciary is explicitly excluded from the requirement.

I also note the use of the precatory “should” in the cited section. Was it poor drafting, or intentional? The author (George Mason) seemed to have a tendency to write in that manner.

Inasmuch as some of the Constitution’s language was borrowed from The Virginia Declaration (some of it verbatim), it is required reading:

Don Barton is right on target. Jefferson wanted us to be ‘bound by the chains of the constitution’… There is a mechanism to change the constitution as Don Barton said so succinctly. To treat the constitution as a “living document” as some would have you believe it is…is to have no constitution at all. What you wind up with are politicians making rules as they go…a rule of man instead of the rule of law. Do not allow anyone to tell you the constitution is a LIVING DOCUMENT…if followed and adhered to it works just fine. It just doesnt suit the politicians mad dash to get all their bills through. I personally think that congress writes too many bills anyway. Which means they spend way to much. They should rather be more concerned with the perfection of a their bills, quality not quantity.

One of the things that sparked the Revolution was that the King of England determined that the Magna Carta and the other documents governing England could mean whatever he wanted them to at the time (aka a living document).

It’s interesting to me that most of the comments focus on the role of the judiciary branch of government. What about treason? Have we commited treason against ourselves by giving to governments or organizations that use those resources to harm us? Are we giving, or have we given too generously as to commit treason against ourselves?

“The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.”

Actually Marshall made a good case for judicial review as a general principle in Marbury, though in the same opinion it seems he misapplied it to the exceptions clause so as to avoid a confrontation with the sitting President.